Johnson v. Henagan

• Decision Date: 20 November 1878
• Docket Number: CASE No. 636.
• Citation: 11 S.C. 93
• Court: South Carolina Supreme Court
• Parties: ABRAHAM G. JOHNSON AND WIFE, ALICE, JOHN T. NORTHROP AND WIFE, MARY, v. ROBERT Y. HENAGAN, AS ADMINISTRATOR DE BONIS NON CUM TEST. AN. OF B. K. HENAGAN, AND AS ADMINISTRATOR OF J. H. HENAGAN, AND A. B. HENAGAN AND S. F. G. HENAGAN.

11 S.C. 93

ABRAHAM G. JOHNSON AND WIFE, ALICE, JOHN T. NORTHROP AND WIFE, MARY,

v.ROBERT Y. HENAGAN, AS ADMINISTRATOR DE BONIS NON CUM TEST. AN. OF B. K. HENAGAN, AND AS ADMINISTRATOR OF J. H. HENAGAN, AND A. B. HENAGAN AND S. F. G. HENAGAN.

CASE No. 636.

Supreme Court of South Carolina.

Nov. 20th, 1878.

1. An executor held not liable for having sold in 1863, for confederate money, cotton raised by him on the plantation of testator; the will having directed the executor to pay the debts out of the crops to be raised.

2. Conclusions of fact drawn by a referee from the conflicting evidence of witnesses examined before him and not overborne by any clear weight of undisputed testimony, nor unfounded in the evidence, sustained.

3. The principles declared upon which an executor's accounts should be stated, in a case where some of the beneficiaries had become entitled to a part of the personalty immediately upon testator's death, and to another part at a subsequent date, and others were devisees of land, upon which the executors were to make crops as a primary fund for the payment of debts, the personalty being next liable, and the land having been sold to pay debts.

4. A purchase by an executor of slaves, a brood mare and other property for the estate, disallowed.

5. An executor charged by the will with the duty of making crops on testator's plantations, is not entitled to a credit on his accounts for a suit of clothes bought for himself.

6. The payment of a counsel fee not supported by facts sufficient to enable the court to judge of its necessity and propriety, disallowed.

7. Accounts rendered by parties dealing with an executor are not, in themselves, proofs of disbursements; nor are entries in mercantile books, without further testimony, proof of payments to laborers, or that such payments covered advances for the production of crops.

8. Amounts paid for the purchase of articles should not be credited on an executor's accounts, unless proven to have been proper for the protection of the personal estate, or necessarily incurred in carrying out the directions of the will.

9. An executor who pays out of his testator's assets a debt due by a legatee, can look only to the distributive share of such legatee for reimbursement.

10. Where an administrator cum testamento annexo, ceases to make crops for the payment of debts, upon the lands of testator, under the directions given to the executors by the will, the legatees of the personalty have no claim upon the subsequent rental; but the personal property becomes then subject to division amongst them.

11. The rule for computation of interest on executors' accounts, as laid down in Livingston v. Wells, 8 S. C. 347, approved.

12. Certain legatees brought an action against the executor for an account; the other legatees were all made parties defendant, and one of them died pendente lite. Held, that the personal representative of such deceased legatee was not a necessary party to the further proceedings. If a proper party, the executor having the power to bring him in, could not object to his absence.

13. An administrator cannot interpose the want of a settlement of his intestate's estate, caused by his own neglect, as an objection to his accounting for another estate, incidentally connected therewith, of which, also, he is administrator.

14. An appeal may be taken from a judgment entered up pro forma by appellants, for the purpose of appealing therefrom.

Before SHAW, J., at Marlborough, March Term, 1876.

Governor Barnabas K. Henagan, of Marlborough district, died in 1854, leaving of force a last will and testament, of which John W. Henagan, J. H. Henagan and J. J. Harllee were appointed executors; the two last named qualified, and James H. Henagan, who was a son of testator, was the chief acting executor. The opinion of the court states so much of the will as is necessary to a proper understanding of the points involved in this case.

The testator left him surviving his widow, four sons, James H., Robert Y., Andrew B. and Samuel F. G., and two daughters, Mary and Alice. Mary afterwards intermarried with Abraham G. Johnson, and Alice intermarried with John T. Northrup. The widow of testator died before action brought.

The executors cultivated the lands of testator before the war and made crops, under the directions of the will. They sold the Grove place (devised to R. Y. Henagan) under a power in the will, to pay debts with. When the war commenced, Harllee removed to Arkansas, where he remained until his death in 1866. J. H. Henagan went into the army. R. Y. Henagan took out letters of administration durante absentia, early in 1862, and, the executor having been killed in battle in July, 1862, administered cum testamento annexo de bonis non on the estate of B. K. Henagan, in May, 1863, and also became administrator of the estate of J. H. Henagan. The heirs-at-law of J. H. Henagan were his surviving brothers and sisters.

R. Y. Henagan then cultivated crops upon the lands of his father's estate until the end of 1867, after which the devisees took possession of the lands and cultivated them. The administrator sold, in 1868, the Creek place devised to him.

J. H. Henagan, executor, sold six negroes of the estate, with which to pay a large and pressing debt. Subsequently he purchased from C. D. Evans, commissioner in equity, other negroes for the estate, which were worked as estate negroes; and he gave a bond for the amount of their purchase money, upon which payments were afterwards made. R. Y. H., after he administered, purchased a brood mare for the estate.

The two daughters of testator, with their husbands, brought this action in May, 1870, against R. Y. Henagan, as administrator cum testamento annexo of the estate of B. K. Henagan, and as administrator of the estate of J. H. Henagan, for an account of his administration of the two estates, and A. B. Henagan and S. F. G. Henagan were made parties defendant. Before judgment was obtained, Samuel F. G. Henagan died.

The accounting was taken before D. D. McCall, Esq., to whom, as special referee, it was referred. His report is as follows:

D. D. McCall, to whom it was referred as special referee in the above-stated action, to inquire and report upon the actings and doings of R. Y. Henagan, as administrator de bonis non of B. K. Henagan, deceased, with will annexed, would respectfully report:

That during the latter portion of 1870, and also during 1871 and the present year, he has held various references in said action, as will be shown by the testimony taken, which references were for the most part at the instance of the plaintiffs, and related to the crops and expenditures of the plantation known as the “Cannon place” during the years 1863, 1864, and since then up to the present year. The number of references and great amount of testimony taken have been owing in a great measure to the failure of administrator to file with his answer an account current, and from failure to make annual returns for any of the nine years covered by his administration, except 1866, and this return related only to transactions of 1863 and 1864, although made and filed on June 25th, 1866. The referee finds that the estate has been managed in a reckless and negligent manner from the beginning, by the administrator; that at the time the administrator took charge of estate, it only owed one debt-the bond to W. H. Evans, trustee-and that on this debt only $4000 has been paid by administrator, including the $2000 paid on May 1st, 1873-the day letters of administration were granted to the administrator; while on the other hand large sums were paid out by the administrator upon the debts of J. H. Henagan, for which the estate of B. K. Henagan was in no way responsible; and the result is, that the whole real estate of B. K. Henagan has been sold, and the whole personal property disposed of by the administrator and others, with a heavy judgment still unsettled. The plaintiffs, by their counsel, urged that the seventy bales of cotton sold by the administrator to Johnson & Breeden, on the 11th day of July, 1863, for $13,846.91 (confederate money), should be charged to the administrator as on hand at the close of the war, claiming the conversion of cotton into depreciating confederate currency to be unwarranted. The balance of the cotton not sold by the administrator was saved at the close of the war, and the sale made by the administrator to Johnson & Breeden, viewed by the light of subsequent events, was a very unfortunate one for the estate, not a dollar of the large amount received from this cotton being applied to the debt due by the estate, being refused by the holder of the bond. The referee is disposed to think that the administrator in this sale acted in good faith, and, as he supposed, for the best interest of the estate, and therefore charges him with confederate currency received.

The administrator, in the account current filed by him on the last reference, and also in the return made in 1866, charges himself with fourteen hundred and fifteen bushels corn sold to different persons in the year 1863. There are no dates attached to any of these sales, nor any proven on reference. The referee therefore charges these items in part on March 15th and on November 1st, being governed to some extent by the prices obtained. The same want of dates occurs in regard to sales of corn made in 1864, and referee charges in same manner, and scales accordingly, although by so doing the price of corn in good money is as low as nine cents per bushel.

The plaintiffs introduced testimony to show that the amount of corn sold during the years 1863 and 1864 greatly exceeded the amount charged; but the evidence was conjectural and uncertain, and the referee has adopted the amount charged in annual return made in 1866.

The referee has, with a great deal of trouble, prepared an account current covering the transactions of said administrator, which is...